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EC Member Political Activity and the Perception of Fairness

The perceived independence of an ethics commission is extremely
important. This perceived independence has become an issue in Frankfort
(KY), according to an article in
Tuesday's State-Journal.

The usual way EC members are selected compromises the perception of
their independence. There are two aspects to this problem. One is who
selects EC members. In most local governments, it is the mayor, the
council, or the mayor with approval by the council. But the people most
likely to come before an EC are the mayor and those who report to the
mayor, and the council and their political colleagues. For this reason,
in many cases, the EC is not perceived to be neutral. Not only are its
decisions open to question, but it will not be seen as sufficiently
fair for people to bring complaints before it or to request advisory
opinions from it. An EC consisting of members perceived not to be fair
undermines a local government's ethics program.

The solution to this aspect of the problem is to have representatives
of community organizations select EC members, as occurs, for example,
in Atlanta, Miami-Dade County, and Milwaukee (see my blog post on this
solution).

The second aspect of the problem is the political activity of selected
EC members. Most ethics codes limit party affiliation, so that no party
has a majority of EC members. But many do not limit political activity,
especially activity before an EC member is selected. This means the
possible selection of politically involved individuals, people who have
personal and political relationships with those who select them, those
who seek advice from them, and those who come before them.

§203(b). No member of the Ethics Commission may be, or have been
within the three years prior to appointment, an official or employee of
the city; an officer in a political party; an active member of the
campaign of a candidate for any office within the Commission's
jurisdiction; or a lobbyist. An Ethics Commission member or staff
member may not make campaign contributions nor participate in any way
in the campaign of a candidate for any office within the Commission's
jurisdiction, or of an individual currently within the Commission's
jurisdiction.

As can be seen in Frankfort, it doesn't take much political activity to
create a perception of impropriety. The Frankfort EC has three members
(too few, by the way; five is the minimum number for an EC). There are
two spots to be filled. Before they could be filled, a complaint was
brought against a council member and the city manager. The council
member had been the mayor's campaign manager when he ran for secretary
of state, and they are perceived to be political allies.

The mayor nominated two individuals for the EC, one of whom had
recently given him a campaign contribution, the other of whom had
recently given the council member a campaign contribution. When the
State-Journal disclosed these contributions, they became an issue, and
the council did not approve the second nominee, the one who contributed
to the council member who was before the EC.

The rejected EC nominee made it clear that he does not understand government
ethics by saying that his contribution would have no impact on his
ability to judge the council member. First of all, it's the perception of bias that
matters most. And second, none of us really knows how we will be
affected by a relationship with someone. It might lead us to favor her,
but it also might make us bend over backwards to show that we are
making an independent decision. In either case, it isn't a fair
decision.

The mayor, too, does not seem to understand the problem. He apparently
referred to the cause of his nominee's rejection as being based on
innuendo, and said it was done "because of newspaper articles
and because of perceived things." They are not "perceived things." They
are real things that create a perception of bias. And there would be
an even bigger problem if the mayor's nominee were to have voted against a finding
of an ethics violation, and then it came out that the nominee had given
the respondent a campaign contribution.

Does the mayor truly feel that the decision of an EC consisting of one
of his supporters, one of the respondent's supporters, and a third
individual will be perceived as fair by the public?

Local government officials must be extremely careful who they name to
ethics commissions. They should go out of their way to select
individuals who are not politically active. The great majority of
people never give contributions to local candidates and are not
involved in parties or campaigns. Officials should remember that even
if the law gives them the responsibility of nominating EC members, they
still may farm the selection process out to community organizations.
A board of representatives of these organizations may recommend one, two, or three individuals for an EC position,
and then the mayor or the council may choose from among them.